Litigation

Litigation

LITIGATION

Public Interest Litigation (PIL) is a key strategy in fulfilling KI’s core objectives of facilitating constitutional implementation. The Constitution contemplates that PIL can be used as a strategy to implement and defend it and to secure and preserve greater rights guaranteed by the Constitution. In this regard, Article 22 and 258 have relaxed the rules of standing allowing disputes that relate to the Constitution to be filed in Court even by those not directly affected. KI has an in house public interest litigation unit staffed by advocates who go to court and represent KI or its partners in public interest matters. Most of the litigation undertaken by KI has been on establishing transparency and accountability, good governance and rule of law.

In December 2012, the Minister for Internal Security issued a Directive requiring all urban refugees to go reside in refugee camps (The encampment policy). The Directive was challenged in Court. KI joined the case as Amicus Curiae (Friend of the Court) and made submissions that the directive violated a number of rights of refugees, including fair administrative action, right of residence and movement, right to dignity and right to security of the person. KI also made extensive submissions on the applicability of Articles 2(5) and 2(6) international customary laws and international conventions in the Kenya legal systems. KI also made extensive arguments on how Article 24 of the Constitution on limitation of rights should be applied. The Court’s judgement adopts a significant portion of KI’s arguments, including the applicability of international law in Kenya, fair administrative action, dignity and the manner in which Article 24 is to be applied.

Find the Judgement here:http://kenyalaw.org/caselaw/cases/view/84157

Advisory No. 2 of 2013 at the Supreme Court of Kenya (The Senate vs. National Assembly)

Concluded

This case involved the question whether the Senate had a role in the passage of the Division of Revenue Act. The National Assembly had ignored the recommendations of the Senate on the Division of Revenue Bill (DREB) and instead passed it unilaterally. KI was admitted as an Amicus in the case and argued that Senate was required to participate in the passage of the Act. In an advisory opinion rendered on November 1, 2013, the Supreme Court found that DREB was a matter concerning County government and hence rejected the argument that Senate had no role in the passage of the Bill.

This Petition concerned a challenge on an attempt by the National Assembly to amend Article 260 of the Constitution in order to remove Members of Parliament, Judicial officers and Members of County Assemblies from the definition of state officers. KI was joined by the Court as an amicus curiae in the case and argued that the implication of the amendment would severely undermine Chapter Six of the Constitution on Leadership and Integrity, that the process itself was flawed as it had not involved the participation of the people and that the amendment would significantly weaken other provisions of the constitution. The Court agreed with the arguments of KI and the Petitioners warning parliament that its amendment process risked being declared unconstitutional unless it was itself not inimical to other provisions of the constitution and/ or the process followed by Parliament was unconstitutional, but refrained from stopping parliament from dealing with the bill. However the Court in its judgement invited petitioners to seek further remedies if the bill was passed in an unconstitutional manner.

The Petitioners are small scale traders who have been selling plants and flowers at a road reserve/riparian in Nairobi since 1984. They have obtained a permit to trade from the City since 1984. They received a notice from the County government requiring them to vacate the premises in 48 hours failing which they would be forcefully evicted. KI intervened in the Court on their behalf and on January 15, 2014, the Court ruled that the County government had violated the Petitioners Constitutional and natural justice rights. Of note in the case is the argument by KI and the ruling by the Court that Article 47 (Fair Administrative Action) is intended to instill discipline in the manner in which public officials conduct public affairs.

This is a case involving the Coal Mining at the Mui Basin. KI is enjoined in the case as amicus curiae and intends to argue on the lack of transparency and accountability as well as failure to involve the public in the process as being a violation of Article 10 of the Constitution.

An Application to withdraw Petition 305 was made and KI argued that because the matter was of Public Interest, the Petitioners could not withdraw the matter unless they could establish that the public interest in the matter had been exhausted. The Court in a Ruling rendered on March 17, 2014 largely agreed with KI’s opinion.

See the Ruling here:http://kenyalaw.org/caselaw/cases/view/95572/

Petition No. 324 of 2013 and Criminal Case
Number 895 of 2013

On going

On May 14, 2013 members of Kenyan civil society and members of the general public staged a demonstration in Nairobi to highlight integrity concerns relating to Members of Parliament who were trying to unconstitutionally assign themselves higher salaries and benefits. Police disrupted the demonstration and a number of civil society members (17) were arrested and charged in criminal court. The accused however challenged their arrest and charges at the High Court and they were granted a stay order pending the determination on whether their constitutional rights were violated.

KI has been participating in both cases, by providing legal advocacy (one of the lead Counsel is from KI), litigation strategy and has been responsible for the filing of pleadings and service. Significantly, KI has led in the preparation of documents for use in court, and generally managing the day to day of the litigation. This case raises issues that are significant and that will have impact in reforming the criminal justice system.

Judgement May 23, 2014

Petition No. 71 of 2013 – The Institute of Social Accountability and The Centre for Enhancing Democracy and Good Governance v. The Constituency Development Fund et al

Ongoing

This matter challenges the Constitutionality of the Constituency Development Fund Act (CDFA) on the basis that it violates the Constitutional principles of public finance, separation of powers, public participation, good governance, accountability and that it is inimical to devolution. The High Court certified the matter as raising a substantial question of law and a three judge bench has been assigned to hear the matter. As a result of the challenge, the National Assembly amended Part of the CDFA. These amendments have raised new issues in the case, including whether the passage of the Amendment Act was unconstitutional because National Assembly unilaterally passed the amendment in circumstances where the Constitutional expects the Senate to participate in the passage of the Amendment Act.

This matter is important because its outcome is expected to enhance the rule of law and good governance. It is also critical to boost accountability in public finance matters. Importantly, it is critical in helping support and clarify powers of devolved units.

Hearing of the matter is May 8, 2014.

Petition No. 282 of 2012, at the High Court in Nairobi

Nathan Muhangani Shimwenyi v. The Attorney General and Others

Ongoing

“Imprisoning” patients in hospital: This case examines the constitutionality of the common practice of Kenyan hospitals to detain patients who have not paid their bills KI argues that this is in violation of the constitutional right to liberty and of Article 43(1)(a) on access to health care services.

We were amicus curiae in a case brought to clarify the extent to which health services are devolved to counties under the Constitution. At the time of writing the judgment is awaited. This is the first major case to be litigated about the powers of counties under Schedule 4 of the Constitution.

Judgement June 6, 2013

Petition No. 6 of 2012 at Malindi High Court

Ongoing

This Petition challenges government’s failure to involve the people of Lamu in the decision making on matters relating to LAPSSET, including on their relocation, compensation, environmental and social impact of the project. KI is litigating the case on behalf of the community. The matter is awaiting the empanelment of a three judge bench following a certification that it raises a substantive issue of law.

Matter certified as raising substantial issue of law and is awaiting appointment of a three-Judge by the Chief Justice

Petition No. 440 of 2013 – Eric Gitari v. The
Attorney General

Ongoing

The Petition involves a dispute between the Eric Gitari and the Non Governmental Coordination Board (Board). Mr. Gitari had applied for the registration of an LGBTIQ organization and his registration was rejected by the Board on account that the names proposed were unacceptable (because they contained the terms gays and lesbian). KI has been admitted in the case and intends to argue that the failure to register the organization violates numerous provisions of the constitution, including association, expression, dignity, security of the person and non-discrimination

The court certified the matter as raising a substantive issue of law and the Chief Justice appointed a three-judge Bench to hear the matter. Hearing is set for May 22, 2014

Katiba Institute has lodged a petition in court on behalf of the communities that are likely to be affected by the demolitions. We will be representing the interests of the community and dwellers pic.twitter.com/JAA7kVurQ6